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Ethics

In ethics hearing, Montana attorney general defends ‘sharp’ words, refusal to obey court order

By Debra Cassens Weiss

October 10, 2024, 11:12 am CDT

Montana Attorney General Austin Knudsen denied that his office was disrespectful, intemperate and contemptuous in questioning during an ethics hearing Wednesday.

Knudsen defended his actions in a 2021 subpoena battle in a hearing before the Montana Supreme Court’s Commission on Practice, report Montana Public Radio, the Associated Press and the Montana Free Press.

Knudsen is facing ethics charges for making “undignified” comments, for accusing state supreme court justices of impropriety, and for refusing to obey court orders.

The charges stem from the attorney general’s representation of the state legislature as it sought emails from a court administrator. The emails concerned the administrator’s polling of members of the Montana Judges Association about a bill changing how judges are chosen.

Knudsen’s office had declared that it did not recognize a court order staying enforcement of a legislative subpoena as binding, and it would not abide by it.

The office also described a court order on legislative subpoenas as “ludicrous” and “outside the bounds of rational thought.” The office later filed a motion alleging that the state supreme court should recuse itself because of an “obvious conflict of interest” and “actual impropriety.”

In the October hearing, Knudsen said he was zealously representing his client, the legislature, in an unprecedented case, according to Montana Public Radio.

“At the time, my client had a bona fide, genuine belief that that order was not valid. And that was what we were instructed, that’s what my office was instructed, to press that position,” Knudsen said.

Knudsen did say, however, his office could have dialed back the rhetoric, according to the AP.

“If I’m being really honest, in hindsight, I think a lot of things could have been done differently and probably should have been done different here,” Knudsen said. “If I had this to do over, I probably would not have allowed language like this—so sharp—to be used. But we and our client truly felt that we were in an absolutely novel situation of constitutional emergency and this is the language that went out.”

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Trials & Litigation

Client escapes sanction for lawyer’s refusal to appear on camera in Zoom deposition

By Debra Cassens Weiss

January 25, 2024, 12:01 pm CST

A client won’t have to pay a sanction of nearly $10,000 for his lawyer’s refusal to appear on camera during a remote deposition, a California appeals court ruled Tuesday.

In an unpublished opinion, the California Court of Appeal’s Second Appellate District ruled that the client doesn’t have to pay because a motion to compel the attorney’s on-camera appearance had been withdrawn.

Law360 and the Metropolitan News-Enterprise covered the Jan. 23 opinion.

The lawyer, Jeffrey Katofsky, represented a man alleged to be taking sports bets. The client was subpoenaed by a wife in divorce proceedings who wanted his testimony about thousands of dollars in sports bets said to be placed by her husband, mostly in the last five years of their marriage.

The wife is Shawn Agnone, and her husband, Frank Charles Agnone II, is an award-winning Hollywood producer, according to the Metropolitan News-Enterprise.

The opinion described what happened at the deposition.

Katofsky was in the same room as his client during the deposition. The client appeared on camera, but Katofsky refused to turn on his webcam. The lawyer for Shawn Agnone complained that he wouldn’t be able to see whether Katofsky was “making any visual signs” or “otherwise coaching” his client.

Katofsky referenced the subpoena notice, which required Katofsky and his client to participate in a Zoom deposition “using their own computer equipped with a webcam,and with a stable landline/wired ethernet connection to the internet.”

Katofsky told the opposing lawyer that his computer was equipped with a webcam, “so we complied with your notice,” according to the opinion.

The lawyer for Shawn Agnone ended the deposition. He filed a motion to compel the appearance of Katofsky’s client in accordance with the terms of the deposition notice and sought sanctions against Katofsky and his client.

The wife later notified the judge that she had settled the divorce case with her husband, and she withdrew the motion to compel. The trial judge partly granted the sanction request anyway, ordering Katofsky’s client to pay $9,981.

The appeals court said under the applicable laws, the judge could not impose any sanction because no order had been entered requiring compliance with the subpoena.

Katofsky told the ABA Journal that the appeals court made the right decision. He also says as a lawyer, he doesn’t have to be on camera in a deposition.

“I have no interest in ever being on camera. Ever,” he says.

“No lawyer has to be on camera,” he says. “It’s completely inappropriate to demand it. If they were worried about seeing me, they could have taken the deposition in person.”

Katofsky also says his client is an insurance agent, not a person who takes sports bets.

“He has nothing to do with sports betting at all,” Katofsky says.

The case is Agnone v. Agnone.